Lake Elsinore Unified School District (PERB 2671E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LORI E. EDWARDS,
Charging Party, 	Case No. LA-CE-5908-E
v. 	PERB Decision No. 2671
LAKE ELSINORE UNIFIED SCHOOL 	September 27, 2019
DISTRICT,
Respondent.
Appearances: Lori E. Edwards, on her own behalf; Atkinson, Andelson, Loya, Ruud & Romo
by Mark W. Thompson and Todd M. Robbins, Attorneys, for Lake Elsinore Unified School
District.
Before Banks, Shiners, and Paulson, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions to a proposed decision (attached) by an administrative law judge
(ALJ). In the underlying unfair practice charge and complaint, Lori E. Edwards (Edwards)
alleged that her employer, Lake Elsinore Unified School District (District), involuntarily
reassigned her to teach kindergarten because she engaged in protected activities, and thus
violated the Educational Employment Relations Act (EERA).1 The ALJ dismissed the
complaint after concluding that Edwards failed to carry her initial burden to establish a causal
relationship between her protected activities and the District’s decision to reassign her. In her
exceptions, Edwards contends that the ALJ misapplied the law and misapprehended the facts
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

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with respect to the evidence of the District’s adherence, or lack thereof, to its policies and
contractual commitments.
Based on our review of the proposed decision, the entire record, and relevant legal
authority in light of the parties’ submissions, we conclude that the ALJ’s factual findings are
supported by the record and his conclusions of law are well-reasoned and consistent with
applicable law. We therefore adopt the proposed decision as the decision of the Board itself,
as supplemented by the following discussion of Edwards’ exceptions.2
BACKGROUND AND PROCEDURAL HISTORY
The relevant facts are adequately set forth in the proposed decision and are not repeated
in detail here. Edwards has taught at the District since 2003. At the time of the events giving
rise to this charge, she worked at Lakeland Village School (LVS). Edwards was active in her
union, the Lake Elsinore Teachers Association (LETA), serving on its executive board,
grievance committee, and as a site representative. Edwards has also filed several unfair
practice charges against the District and engaged in other protected activities to enforce
LETA’s contract.
2 On November 8, 2018, Edwards filed a request to withdraw this case pursuant to a
settlement agreement reached between her and the District. On December 3, 2018, Edwards
filed a “Motion to Review Settlement Agreement Due to EERA Violations and [to] Compel the
[Respondent] to Lawful [sic] Comply with the Terms and Conditions of the Agreement.”
(Some capitalization omitted.)
Under EERA section 3541.5, subdivision (b), the Board “shall not have the authority to
enforce agreements between the parties, and shall not issue a complaint on any charge based on
alleged violation of any agreement that would not also constitute an unfair practice under this
chapter.” Because the Board has no power to enforce the disputed settlement agreement in this
matter, we cannot act on Edwards’ Motion. Further, in light of the concerns raised by the
allegations in her Motion that the District breached the agreement and that some of the terms
of the agreement violated her rights under EERA, the Board denies Edwards’ request to
withdraw the charge in this case. (See ABC Unified School District (1991) PERB Decision
No. 831b, p. 3 [the Board itself has discretion to grant or deny a withdrawal request].)
2

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Prior to the 2012-2013 school year, Edwards, who had been teaching fourth grade, was
contacted by Deana Steagall (Steagall), a sixth grade teacher whose position was being
collapsed.3 Steagall was slated for reassignment to a first grade opening, a position she did not
want to teach. Steagall asked Edwards if she would be willing to teach first grade instead.
Edwards agreed and applied for the first grade opening. No one else volunteered for the
position, and Edwards was voluntarily reassigned to first grade. Steagall then applied for and
was voluntarily reassigned to the fourth grade position left open by Edwards’ reassignment.
On May 31, 2013, LVS’s principal, Nick Powers (Powers), informed staff of their
tentative assignments for the 2013-2014 school year. Edwards was tentatively assigned to
teach a K-1 combination class.4 Powers met with Edwards to inform her that the K-1
combination class was a newly created opening, and she was being reassigned to the position
because she had the lowest District seniority among LVS teachers who were qualified to fill
the position. Edwards stated she did not want to teach kindergarten, but was fine with the
reassignment. However, she informed Powers that before she could be involuntarily
reassigned, the opening had to be posted to the school site for volunteers. Powers agreed and
emailed LVS staff seeking volunteers for the opening. Kimberly Rosales (Rosales), a first
grade teacher, was the only teacher to volunteer and was tentatively assigned to teach the K-1
class. Edwards was then tentatively assigned to remain in her first grade assignment.
On the first day of the 2013-2014 school year, Rosales informed Edwards that she
would not be teaching the K-1 combination class because kindergarten enrollment did not
3 Positions are collapsed when there are not enough students to justify a classroom. In
those instances, the students are distributed among the remaining classrooms in the grade level.
4 Combination classes consist of students in two different grade levels.
3

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justify a combination class. As a result, her combination class was reverted to a straight first
grade class. Kip Meyer, the District’s Assistant Superintendent of Personnel Services, testified
that while not specified in the Collective Bargaining Agreement (CBA), the practice in
situations where a teacher volunteers for a reassignment and the reassignment does not come to
fruition, is that the teacher reverts back to her prior assignment. In these instances, the position
the teacher reverts back to is not posted to the school site as an opening.
Powers testified that Rosales’ reversion back to first grade resulted in more first grade
teachers than were justified by student enrollment, and one of the teachers’ classes would have
to be collapsed. As it so happened, a kindergarten teacher transferred out of LVS in the middle
of September, which created an opening at that grade level. Since Edwards was the least
senior teacher at LVS qualified to fill the position, she was slated for involuntary reassignment
into the position.
On September 9, 2013, Powers emailed LVS staff seeking volunteers for the open
kindergarten position. Since no one stepped forward, Edwards was involuntarily reassigned to
the position. According to Edwards, LETA would not let her grieve the reassignment so she
instead filed this unfair practice charge.
A formal hearing in this matter was held over four days in late May and early June
2015. The ALJ issued the proposed decision dismissing the complaint on April 11, 2016,
concluding that Edwards had not established the necessary causal nexus between the
kindergarten reassignment and her protected activities. Edwards filed exceptions,5 to which
the District filed a response.
5 Initially, we rejected Edwards’ exceptions as untimely because of a clerical error.
(Lake Elsinore Unified School District (2018) PERB Decision No. 2561.) After Edwards moved
4

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DISCUSSION
Although the Board’s review of exceptions to a proposed decision is de novo, it need
not address arguments that have already been adequately addressed in the same case or that
would not affect the result. (Trustees of the California State University (2014) PERB Decision
No. 2400-H, pp. 2-3; Los Angeles Superior Court (2010) PERB Decision No. 2112-I, pp. 4-
5; Morgan Hill Unified School District (1995) PERB Decision No. 1120, p. 3.) Edwards’
exceptions and supporting brief are far from clear,6 but her principal argument seems to focus
on the ALJ’s conclusion that she failed to prove the necessary causal nexus between her
protected activities and the District’s decision to involuntarily reassign her to teach a
kindergarten class.7
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5, subdivision (a), the charging party must show that: (1) the
employee exercised rights under EERA; (2) the employer had knowledge of the exercise of
those rights; (3) the employer took adverse action against the employee; and (4) the employer
took the action because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210, pp. 5-6 (Novato).) The charging party has the initial burden of
demonstrating the “because of” element, that is, a causal connection or “nexus” between the
for reconsideration, we acknowledged our error and docketed her exceptions. (Lake Elsinore
Unified School District (2018) PERB Decision No. 2561a.)
6 In this regard, Edwards’ exceptions suffer from the same defects identified in Lake
Elsinore Unified School District (2019) PERB Decision No. 2633, pp. 8-10.
7 Edwards also requests that we review a 2012 arbitration decision regarding the
involuntary reassignment of Edwards from the first to the fourth grade at the start of the 2010-
2011 school year; we deny this request for the reasons stated in the proposed decision. To the
extent that Edwards also seeks repugnancy review of a related appellate court opinion, we deny
her request because the Board has no such authority.
5

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adverse action and the protected conduct. (Ibid.; PERB Reg. 32603, subd. (a).8) Because
“retaliatory conduct is inherently volitional in nature,” evidence of unlawful motive is the
specific nexus required to establish a prima facie case. (Novato, supra, PERB Decision
No. 210, p. 6; City of Sacramento (2019) PERB Decision No. 2642-M, p. 20.)
While the Board considers all relevant facts and circumstances in assessing an
employer’s motivation, we have identified the following factors as being the most common
means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s
adverse action in close temporal proximity to the employee’s protected conduct is an important
factor; (2) the employer’s disparate treatment of the employee; (3) the employer’s departure
from established procedures and standards when dealing with the employee; (4) the employer’s
inconsistent or contradictory justifications for its actions; (5) the employer’s cursory
investigation of the employee’s misconduct; (6) the employer’s failure to offer the employee
justification at the time it took action or the offering of exaggerated, vague or ambiguous
reasons; (7) employer animosity towards union activists; and (8) any other facts that might
demonstrate the employer’s unlawful motive. (City of Sacramento, supra, PERB Decision
No. 2642-M, p. 21.)
Although she does not identify any of these factors explicitly, Edwards appears to argue
unlawful motive is established by the District’s departure from established procedures
governing involuntary reassignments. But the evidence fails to prove any such departure by the
District.
8 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
6

First, Edwards contends that the District’s transfer decision violated its CBA with
LETA and the parties’ past practice. For instance, she makes the following claim in her brief
in support of her exceptions: “The District had no justifiable business reason to place []
Rosales into first grade without an opening because teachers who voluntarily reassign out of
their assignments have no retrieval rights back to their original assignments without there
being a (posted) opening as per the CBA and past practice.” While the CBA is silent on this
issue, the District presented unrebutted evidence that when a teacher is voluntarily reassigned
and the reassignment falls through, the teacher is returned to their prior class assignment.
Conversely, Edwards presented no evidence that any District teacher whose voluntary
reassignment fell through was placed in an open position instead of being returned to their
prior class assignment. With no evidence supporting her claimed past practice, Edwards has
failed to prove the District departed from established procedure or policy when it returned
Rosales to the first grade position. (Compare San Bernardino City Unified School District
(2004) PERB Decision No. 1602, pp. 22-23 [finding departure from established procedure
where employer witnesses testified it was the district’s long-established practice to notify a
substitute teacher before removing the teacher from the substitute finder system but such notice
was not given to the alleged discriminatee]; with Trustees of the California State University
(Sacramento) (2005) PERB Decision No. 1740-H, pp. 3-4 [insufficient evidence of departure
from established procedure where charging party failed to prove university had a policy or
practice of conducting a full investigation before giving an employee a warning letter].)
Second, Edwards claims that the District should not have involuntarily reassigned her
to teach kindergarten because there were multiple volunteers for that position, and the CBA
prohibited involuntary reassignments if there were teachers willing to take the position. While
7

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the CBA does indeed prohibit involuntary reassignment when a teacher volunteers for the open
position, Edwards produced no evidence that any other teachers volunteered for the
kindergarten position into which Edwards was involuntarily reassigned.9 Again, Edwards has
failed to prove the District departed from established procedure.
We agree with the ALJ that Edwards did not meet her initial burden to show the
necessary causal nexus between her protected activities and the kindergarten reassignment.
Since Edwards failed to establish a prima facie case of retaliation under EERA, we affirm the
dismissal of the complaint.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5908-E are
DISMISSED.
Members Shiners and Paulson joined in this Decision.
9 An example of Edwards’ failure to marshal supporting evidence is her citation to the
testimony of Victoria Picket, who in fact never testified that she or anyone else volunteered for
the disputed kindergarten position.
8

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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
LORI E. EDWARDS,
Charging Party,
v.
LAKE ELSINORE UNIFIED SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5908-E
PROPOSED DECISION
(April 11, 2016)
Appearances: Lori E. Edwards, in pro per; Atkinson, Andelson, Loya, Ruud & Romo, by
Todd M. Robbins, Attorney, for Lake Elsinore Unified School District.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
INTRODUCTION
This case alleges a public school employer violated the Educational Employment
Relations Act (EERA)1 by involuntarily reassigning a public school employee from first grade
to kindergarten and by placing a number of students in her class that exceeded the limit set
forth in the collective bargaining agreement (CBA) covering teachers. The employer denies
committing any unfair practices.
PROCEDURAL HISTORY
On March 4, 2014, Lori E. Edwards (Edwards) filed an unfair practice charge against
the Lake Elsinore Unified School District (District). On September 24, 2014, Edwards filed a
first amended charge. On October 1, 2014, Edwards filed a request for injunctive relief, which
was denied on October 8, 2014. On November 7, 2014, the Office of the General Counsel of
the Public Employment Relations Board (PERB or Board) issued a complaint alleging the
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

District violated EERA section 3543.5, subdivision (a), when it discriminated against Edwards
because she filed unfair practice charges by involuntarily reassigning her from first grade to
kindergarten and assigning her a number of students in violation of the CBA with the teachers’
union.
On December 1, 2014, the District filed its answer to the complaint denying any
violation of EERA. On January 22, 2015, an informal settlement conference was held, but the
matter was not resolved.
The formal hearing was held on May 20, 21 and 22, and June 5, 2015. On
May 21, 2015, the second day of formal hearing, Edwards discussed the alleged disability of
one of the witnesses, when that issue was not pertinent to the case. On May 22, 2015, the third
day of formal hearing, the witness with the alleged disability met with the parties and the
Administrative Law Judge (ALJ) and expressed her concern that her medical information
would be made a part of the public record. The ALJ proposed that the mention of the specific
disability be sealed from public inspection and both parties did not object to the proposal.
Therefore, those portions of the transcript of the second day of formal hearing which expressly
mentions the witness’s alleged disability shall be sealed from public inspection. The transcript
which is available for public inspection shall be partially redacted on pages 119-120 pursuant
to Government Code section 11425.20 and Civil Code sections 1798.14 and 1798.24.
On June 5, 2015, the fourth day of hearing, Edwards filed a motion requesting the ALJ
conduct a repugnancy review pursuant to EERA section 3541.5, of an arbitration decision and
award written by Arbitrator Robert Bergeson dated May 20, 2012, regarding the involuntary
assignment of Edwards from the first to the fourth grade at the start of the 2010-2011 school
year. The parties were encouraged to address the matter in their post-hearing briefs.
2

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The matter was submitted for proposed decision with the submission of post-hearing
briefs on August 17, 2015.2
Request for Repugnancy Review
After reviewing the parties’ arguments, Edwards’s request for repugnancy review is
denied. First of all, it is untimely as it has been more than three years since the arbitration
decision has been issued, and it is required that a request for repugnancy review must be filed
within a six month period. (EERA section 3541.5, subdivision (a); Trustees of California State
University (Long Beach) (2011) PERB Decision No. 2201-H, pp. 5-6 [decided under an
analogous provision of the Higher Education Employer-Employee Relations Act (HEERA),
Gov. Code § 3560 et seq.].) Additionally, Edwards has not established that the arbitration
decision was based upon the underlying dispute in the instant case. (Ventura County
Community College District (2009) PERB Case No. 2082, pp. 4-5 (Ventura).) While the
arbitration decision was expressly mentioned in a prior case of Edwards (Lake Elsinore Unified
School District (2014) PERB Decision No. 2353),3 that underlying charge was dismissed.
EERA section 3541.5, subdivision (a), does not provide a means for initiating further
proceedings based on a charge that has already been closed. (Ventura, supra, PERB Decision
No. 2082, p. 5.) Accordingly, the Board no longer has jurisdiction to conduct a repugnancy
review of the arbitration decision.
2 On August 18, 2015, Edwards submitted a correction to her post-hearing brief.
3 This decision involved Lori E. Edwards v. Lake Elsinore Unified School District,
PERB Case No. LA-CE-5753-E. The dismissal letter states that a grievance on involuntary
assignment was submitted to arbitration and Arbitrator Bergeson issued an arbitration award on
May 20, 2012. Edwards filed the unfair practice charge on October 15, 2012, after the
arbitration award was issued. The Board upheld the dismissal letter of the Office of General
Counsel and therefore did not reach the repugnancy issue. The Board designated its decision
non-precedential, pursuant to PERB Regulation 32320, subdivision (d).
3

FINDINGS OF FACT
Jursidiction
Edwards is a public school employee within the meaning of EERA section 3540.1,
subdivision (j), and is employed by the District as a teacher.
The District is a public school employer pursuant to EERA section 3540.1,
subdivision (k).
Collective Bargaining Agreement
The Lake Elsinore Teachers Association (LETA or Association) is an exclusive
representative within the meaning of EERA section 3540.1, subdivision (e), and represents a
unit of certificated employees within the District that includes Edwards.
At all relevant times, LETA and the District were parties to a CBA. Two CBAs are
relevant to this case, one with a term between July 1, 2011 to June 30, 2014 (2011-2014 CBA),
and another with a term between July 1, 2014 and June 30, 2015 (2014-2015 CBA).
The 2011-2014 CBA provides in pertinent part:
ARTICLE 1. 	AGREEMENT, RECOGNITION AND
DEFINITIONS
[¶ . . . ¶]
1.3 	Definitions
[¶ . . . ¶]
1.3.3 	Assignment is the unit member’s grade level and/or
subject area, work schedule, and work site.
[¶ . . . ¶]
1.3.12 Elementary Teacher is a unit member assigned to
grades K-5.
[¶ . . . ¶]
4

1.3.17 Involuntary Transfer is a change of work location to
another school or facility not agreed to by the unit
member.
[¶ . . . ¶]
1.3.19 Opening refers to a site specific section and/or
assignment not currently filled by a unit member.
[¶ . . . ¶]
1.3.21 Reassignment is a change in assignment at the same
site.
[¶ . . . ¶]
1.3.24 District Seniority as applied on Contract Articles
2.6.5.2, 2.9.1.2, 6.2.3.1, 6.3.2.2 and 6.6.2.2 shall be
determined by the years completed paid service in the
District. . . .
[¶ . . . ¶]
ARTICLE 2. TERMS AND CONDITIONS OF
EMPLOYMENT
2.5 	Kindergarten Assignments (inclusive of Preschool/
Kindergarten)
2.5.1 	Kindergarten teachers shall teach one (1) session.
2.5.2 	A minimum of (60) minutes daily shall be spent
providing instruction to students enrolled in another
kindergarten teacher’s classroom, beyond their own
class schedule, unless the kindergarten teaching team
at a site agrees that such time may be assigned to a
primary classroom. If there are not other kindergarten
classes in which to provide instruction, the
kindergarten teaching team at the site shall for
assistance or assignment in the instructional program
of the primary grades when not involved in the
kindergarten program, as per Education Code [section]
46118[,] [subdivision] (d). Combination
kindergarten/first grade are not considered part of the
kindergarten teaching team.
5

[¶ . . . ¶]
2.13 Reassignment of Students in Grades K-5
In the event that students must be reassigned from their
regular classroom when a substitute teacher is not available,
the teachers that receive additional students shall be
compensated at $5.00 per student.
Teacher participation shall be voluntary. In the event
teachers do not volunteer in sufficient numbers to allow for
an equitable distribution of students, school site
administration shall attempt to reassign students in an
equitable manner among classes.
[¶ . . . ¶]
ARTICLE 5. CLASS SIZE
5.1 	Elementary Regular Class Size (Grades K-5)
5.1.1 	The maximum size of an individual elementary class
will be 33 students. The District-wide staffing ratio
will be 1:30 for regular K-5 students.
5.1.1.1 	Elementary class sizes at the same site and
grade level shall differ no more than three (3)
students. Fifteen (15) working days shall be
granted to make adjustments. . . .
5.1.1.2 	Combination classes shall contain a
difference of no fewer than five (5) students.
Combination classes shall not have more
students than any single class at the grade
levels being combined. . . .
[¶ . . . ¶]
6

5.4 	Notice of Excess Class Size
5.4.1 	Each school site will post the class size by the
individual classes each Friday starting with the third
Friday of the site’s school year attendance. The
posting will be in an area where all teachers may
view. A copy will be provided to the Association’s
site representative.
5.4.2 	The principal may recommend, but not require, that
the affected teacher(s) sign a waiver request. . . .
[¶ . . . ¶]
ARTICLE 6 ASSIGNMENTS AND TRANSFERS
6.1 	Vacancy and Opening Announcement
Announcements of all vacancies shall be provided to all
bargaining unit members electronically (via email) and
posted on the Lake Elsinore Unified School District
Website at least five (5) work days (week days in the
summer) prior to the application deadline. Paper copies of
all such announcements shall be mailed to the LETA
President. Transfer request forms shall be included in all
announcements. Transfer requests for a specific vacancy
shall be submitted to the District Personnel Office within
the appropriate application period.
Announcements of reassignment openings shall be provided
electronically (via email) at least five (5) work days
(inclusive of modified work days in the summer) prior to
the application deadline to all unit members at the
applicable site. Paper copies of all such announcements
shall be mailed to the LETA President. Reassignment
requests shall be provided to the site principal within the
appropriate application period.
[¶ . . . ¶]
6.4 	Assignment
6.4.1 	Such principals shall notify unit members of their
tentative assignments prior to, but not less than
fifteen (15) working days before the first student
attendance day of the school year on each track.
7

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Assignments are considered tentative until the
sixteenth (16) day of student attendance on each
track.
6.4.1.2[4] Unit members not in agreement with their
tentative assignment for the following
school year, may request a conference with
the site principal.
6.4.1.3 	The site principals’ decision may be
appealed to the Superintendent/Designee.
6.4.1.4 	Assignments will be determined by actual
student enrollments and student curriculum
needs.
[¶ . . . ¶]
6.5 	Voluntary Reassignment
6.5.1 	Voluntary reassignments will take place before
initiating involuntary reassignments.
[¶ . . . ¶]
6.5.3 	Reassignments following the sixteenth (16th) day of
student attendance on each track shall be based upon
student enrollment and curriculum needs.
[¶ . . . ¶]
6.5.6 	Reassignment requests to fill a specific opening will
be considered on the basis of an interview and the
following criteria:
6.5.6.1 	Credentials, authorizations, and effective
July 1, 2007, Highly Qualified status required to
perform the assigned duties.
6.5.6.2 	District Seniority.
4 This subsection was misnumbered and did not have a 6.4.1.1
8

6.6 	Involuntary Reassignment
6.6.1 	No unit member will be involuntarily reassigned to
fill a vacancy if there is a volunteer who is fully
credentialed for the available position.
6.6.2 	Involuntary reassignment(s) required by changes in
enrollment and/or student curriculum needs will be
made in accordance with the following criteria in the
order listed:
6.6.2.1 	Credentials, authorizations, and effective
July 1, 2007, Highly Qualified status
required to perform the assigned duties.
6.6.2.2 	Least District Seniority. Unit members
involuntarily reassigned based upon least
District seniority will not be involuntarily
reassigned the following school year, if
there is another unit member qualified by
6.6.2.1.
6.6.3 	The unit member being considered for involuntary
reassignment may request a conference before the
effective date of the reassignment. If requested, a
conference will be held within (5) working days with
the unit member and the Superintendent/Designee.
The unit member may be represented by an
Association representative if the unit member so
desires.
[¶ . . . ¶]
6.8 	Assistance to Unit Member
6.8.1 	Pre-packed teaching materials will be moved to a
new work location by maintenance and/or
operations, if requested in writing by the unit
member.
6.8.2 	When a transfer or reassignment involving a
substantial change in duties and responsibilities is
made during the student attendance year, the
affected unit member will be provided release time
to prepare the new assignment. . . . Unit members
at the elementary level will receive a minimum of
9

one (1) release day when reassigned to another grade
level.
ARTICLE 21. SAVINGS PROVISION
21.1 	If any provisions of this Agreement are held to be contrary
to law by a court of competent jurisdiction, such
provisions will not be deemed valid and subsisting except
to the extent permitted by law, but all other provisions
will continue in full force and effect.
[¶ . . . ¶]
ARTICLE 22. SUPPORT OF AGREEMENT
[¶ . . . ¶]
22.2 	The Lake Elsinore Unified School District and the Lake
Elsinore Teachers Association agree that if either party
believes in the intent of the language of the Agreement is
being misinterpreted, the parties agree to meet and discuss
the interpretation of the Agreement Article(s) in question.
(Underlining and bolding included in quotation.)
The 2014-2015 CBA included mostly rollover language with some changes. Some of
those changes include the following sections:
ARTICLE 5. CLASS SIZE
5.1 	Elementary Regular Class Size (Grades TK-5)
5.1.1 	During the 2013/14 and 2014/15 school years, the
District shall staff TK-3 classrooms at 24:1 each year
and the site ratio shall not exceed 26:1.
5.1.2 	Elementary class sizes at the same site and grade level
shall differ no more than three (3) students. Fifteen
(15) working days shall be granted to make
adjustments. Overages that occur after the fifteenth
(15th) day of the school year shall be granted five (5)
days to make adjustments.
[¶ . . . ¶]
10

5.1.4 	Combination classes shall be formed containing a
difference of no greater than five (5) students.
Combination classes shall not have more students than
any single class at the grade levels being combined.
When a combination class is at a difference of five (5),
a meeting shall be held with the grade level teams and
site administrator to collaboratively determine a plan
of action for future enrollment.
[¶ . . . ¶]
5.3 	Notice of Excess Class Size
5.3.1 	Each school site will post the class size by the
individual classes each Friday starting with the third
Friday of the site’s school year attendance. The
posting will be in an area where all teachers may
view. A copy will be provided to the Association’s
site representative.
5.3.2 	The principal may recommend, but not require, that
the affected teacher(s) sign a waiver request. . . .
(Underlining and bolding included in quotation, italics emphasize changes.)
Edwards’s Employment with the District
Edwards possesses a multiple subject teaching credential, which allows her to teach
kindergarten through fifth grade.
On July 1, 2003, the District hired Edwards as a full-time fifth grade teacher at
Butterfield Elementary School (Butterfield). Edwards worked in that assignment through the
2004-2005 school year.
In the 2005-2006 school year, Edwards taught fourth grade at Butterfield pursuant to a
reassignment. She resigned from the District at the end of the school year and did not teach
during the 2006-2007 school year.
Edwards returned to the District in the 2007-2008 school year as a full-time first grade
teacher at Butterfield. She taught in that assignment through the 2009-2010 school year.
11

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In the 2010-2011 school year, Butterfield was shut down, and Edwards was relocated to
Lakeland Village School (LVS). Although she was initially assigned to first grade, she was
involuntarily reassigned to fourth grade in September 2010. She taught fourth grade through
the 2011-2012 school year.
Nick Powers (Powers) became principal of LVS in the 2012-2013 school year. Powers
testified that it is his responsibility to assign teachers and he does so based on enrollment
projections he receives from the District in February. In May, he sends out tentative
assignments, which can change based on enrollment or curricular need.
Prior to the 2012-2013 school year, Edwards was contacted by Deana Steagall
(Steagall), a sixth grade teacher whose position was being collapsed.5 Steagall was slated for
reassignment to a first grade opening, a position she did not want to teach. Steagall asked
Edwards if she would be willing to teach first grade instead. Edwards agreed and applied for
the first grade opening. Since no one else volunteered, Edwards was voluntarily reassigned to
first grade. Steagall then applied for and was voluntarily reassigned to the fourth grade
position left open by Edwards’s reassignment.
Edwards’s Reassignment to Kindergarten
On May 31, 2013, Powers emailed LVS staff informing them of their tentative
assignments. Edwards was tentatively assigned to teach a K-1 combination class.6 Powers
met with Edwards to inform her that the K-1 combination class was a newly created opening,
and she was being reassigned to the position because she had the lowest District seniority
among LVS teachers who were qualified to fill the position. Edwards stated she did not want
5 Positions are collapsed when there are not enough students to justify a classroom. In
those instances, the students are distributed among the remaining classrooms in the grade level.
6 Combination classes consist of students in two different grade levels.
12

to teach kindergarten, but was fine with the reassignment. However, she informed Powers that
before she could be involuntarily reassigned, the opening had to be posted to the school site for
volunteers. Powers agreed and emailed LVS staff seeking volunteers for the opening.
Kimberly Rosales (Rosales), a first grade teacher, volunteered. Since no other teachers
volunteered, Rosales was tentatively assigned to teach the K-1 class. Edwards was then
tentatively assigned to remain in her first grade assignment.
Prior to the beginning of the 2013-2014 school year, Edwards spent two weeks cleaning
and setting up her classroom, which included building and painting a new library. She spent
$2,000 of her own money purchasing supplies and materials to prepare her classroom.
On the first day of the 2013-2014 school year, Rosales informed Edwards that she
would not be teaching the K-1 combination class because kindergarten enrollment did not
justify a combination class. As a result, her combination class was reverted to a straight first
grade class. Kip Meyer (Meyer), the District’s Assistant Superintendent of Personnel Services,
testified that while not specified in the CBA, the practice in situations where a teacher
volunteers for a reassignment and the reassignment does not come to fruition is to have the
teacher revert back to her prior assignment. In these instances, the position the teacher reverts
back to is not posted to the school site as an opening.
Powers testified that Rosales’ reversion back to first grade resulted in there being more
first grade teachers than was justified by student enrollment, and one of the teachers’ classes
would have to be collapsed. As it so happened, a kindergarten teacher transferred out of LVS
in the middle of September, which created an opening at that grade level. Since Edwards was
the least senior teacher at LVS qualified to fill the position, she was slated for involuntary
reassignment into the position.
13

On September 9, 2013, Powers emailed LVS staff seeking volunteers for the open
kindergarten position. Since there were no volunteers, Edwards was involuntarily reassigned
to the position.
On September 19, 2013, Edwards met with Powers for an informal grievance
conference. Edwards argued that Rosales should teach kindergarten because she had
volunteered for the K-1 combination class the prior year. Powers did not agree, and the
meeting ended with Edwards still reassigned to teach kindergarten.
Edwards testified she did not file a formal grievance challenging her reassignment
because LETA refused to let her do so. Instead, she filed the instant unfair practice charge
with PERB.
Prior to starting her kindergarten assignment, Edwards was provided time to set up her
new classroom, which was in a state of disarray. The custodians helped her move large items
from her old classroom into the new classroom, and she hired movers to help her with the rest.
She also voluntarily spent another $1,200 to buy new supplies appropriate for the grade level.
The report time for kindergarten and first grade teachers is the same. However,
kindergarten teachers do not have their students the entire day. There are A.M. and P.M.
kindergarten classes, both of which are four hours long. When A.M. teachers’ students go
home, they assist the P.M. teachers, and P.M. teachers assist A.M. teachers before their
students arrive. Edwards is an A.M. teacher.
Edwards testified that she prefers first grade because it is the grade level when children
must first know how to read. LVS is a low-performing school and often in higher grade levels
Edwards would encounter students who could not read. It was Edwards’s hope to reach
14

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students earlier and help them learn how to read so they would be prepared for the upper grade
levels.
Edwards testified that she does not like kindergarten because the class sizes are larger,7
the students do not know the alphabet, they are unable to write their names or most other
words, there is increased parent involvement and nitpicking, and the students wet themselves
and cry every day. Kindergarten students also require assistance with tasks that older students
would not require, including help with eating their meals and tying their shoes.
Edwards’s Class Size
LVS has students in transitional kindergarten (TK) through eighth grade. TK is the first
year of a two-year kindergarten program and has a different curriculum from standard
kindergarten. It is a relatively new program, having come into existence in 2012. The
District’s Board Policies include TK in the calculation of average class enrollment for
kindergarten.
The record reflects TK and kindergarten were treated differently between school sites,
with some considering them the same grade level and others considering them different grade
levels. In the 2013-2014 school year, LVS treated TK and kindergarten as the same grade
level and balanced their class sizes accordingly. For example, as of September 6, 2013, the
breakdown in class sizes between TK and kindergarten at LVS were as follows: Smith, as a
TK teacher had 22 students; Bartel, Castaneda, and Nhel, as kindergarten teachers with 24, 24,
and 25 students, respectively.
As noted above, the District and LETA entered into a new CBA for the 2014-2015
school year. The 2014-2015 CBA acknowledged the implementation of the TK program and
7 Based on LVS class size data from September 6, 2013, Edwards moved from a first
grade class of 19 students to a kindergarten class of 24 students.
15

substituted “TK” for “K” where appropriate, although there were several places where the
substitution was erroneously not made. The 2014-2015 CBA also made a significant change to
how combination classes were constructed. Previously, combination class sizes were balanced
by ensuring the total number of students in the combination class was within five of the lowest
and highest classes in the two grade levels making up the combination class. However, this led
to situations where the combination class itself would be severely unbalanced. For example, a
combination class with seven fourth graders and 21 fifth graders would be considered balanced
even though the discrepancy between fourth and fifth graders in the class created a suboptimal
learning environment. To remedy this, Article 5.1.4 of the 2014-2015 CBA required
combination classes to have a difference of no greater than five students between the two grade
levels.
Meyer testified that as a result of the new language regarding combination classes, the
District began receiving questions as to whether TK and kindergarten were considered the
same grade level. Part of the confusion stemmed from the language in Article 5.1 that referred
to “Elementary Regular Class Size (TK-5).” After some investigation, Meyer became aware
that some school sites treated TK and kindergarten as the same grade level whereas others
treated them as separate grade levels. The 2014-2015 CBA provided no guidance, so Meyer
reached out to LETA to negotiate the issue.
Meanwhile, on August 28, 2014, Powers emailed kindergarten teachers Castaneda,
Nhel, and Edwards about an imbalance between the TK and kindergarten class sizes. At that
time, Smith had 18 TK students while Castaneda, Nhel, and Edwards had 27, 28, and 27
kindergarten students, respectively. Powers believed these class sizes were not balanced since
16

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LVS treated TK and kindergarten as the same grade level. Powers asked Castaneda, Nhel, and
Edwards to sign waivers agreeing to the imbalance, but they declined to do so.
On September 5, 2014, Meyer emailed elementary school principals informing them
that TK and kindergarten would be considered separate grade levels and would not have to be
balanced within three students under Article 5.1.2. As a result, Powers did not find it
necessary to rebalance students between TK and kindergarten at LVS since each grade level
was already balanced.
Also on September 5, 2014, Edwards emailed Kathleen Halvorson (Halvorson), an
employee of the California Department of Education, inquiring whether TK and kindergarten
were the same grade level. Halvorson responded that day, stating in part:
Pursuant to our phone conversation, in the current California
Education Code (EC), TK is the first year of a two-year
kindergarten program that uses a modified curriculum.
Therefore, TK is not a separate grade level from kindergarten.
Although the California public school system is under the
purview of the State Legislature, many issues are under local
control, and the CDE is limited to administering federal and state
education law and regulations. Therefore, I shall direct you to
California Education Codes (EC) that pertain to your issue.
Note: In the current education code [sic], the term “kindergarten”
also pertains to transitional kindergarten (TK).
(Emphasis in original.)
Upon receipt, Edwards forwarded Halvorson’s email to Meyer.8
On September 16, 2014, Edwards filed a grievance asserting a class size imbalance
because TK and kindergarten could not be treated as separate grade levels. She testified
8 Halvorson’s email was admitted for the limited non-hearsay purpose of establishing
what information Edwards forwarded to Meyer.
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having more students in the classroom was stressful and bad for students because they did not
get the right level of attention.
On September 18, 2014, LETA surveyed TK and kindergarten teachers regarding their
preference for whether or not TK and kindergarten should be considered separate grade levels.
On October 28, 2014, LETA and the District entered into a memorandum of
understanding (TK-K MOU) that stated TK and kindergarten were separate grade levels.
Based on the TK-K MOU, Edwards’s grievance was denied.
Edwards’s Union Activities and Prior Unfair Practice Charges
In the 2010-2011 school year, Edwards served as LETA’s K-5 Director, was a member
of LETA’s grievance team, and served as a site representative.
In the 2011-2012 school year, Edwards was part of LETA’s Executive Board in
addition to serving as K-5 Director, a member of the grievance team, and site representative.
During that school year, Edwards worked on a grievance on behalf of teachers regarding
teachers’ duty hours on student minimum days.
On October 15, 2012, Edwards filed an unfair practice charge against the District
(PERB Case No. LA-CE-5753-E).9 On September 10, 2013, PERB’s Office of the General
Counsel dismissed the charge.
In the 2012-2013 school year, Edwards continued to serve as a member of the
grievance team, as a member of the Executive Board, and as a site representative. During that
school year, she also met with Powers to discuss a teacher’s need for a reasonable
9 The Board has held that it is appropriate for an administrative agency such as PERB to
take official notice of its own records. (Regents of the University of California (1999) PERB
Decision No. 1359-H, proposed decision p. 18, fn. 11, citing El Monte Union High School
District (1980) PERB Decision No. 142.) Accordingly, official notice is taken of the unfair
practice charge in PERB case no. LA-CE-5753-E.
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accommodation, represented employees in meetings where they received verbal warnings, and
helped teachers draft PERB unfair practice charges.
During the 2013-2014 school year, Edwards represented a teacher in a meeting where
the District sought to question the teacher about a parent complaint. She also assisted a teacher
regarding the District’s requirement that she get an autism authorization, and she corresponded
to District administrators and the District’s Board of Education regarding a possible reduction
in staff at LVS and the effect this would have on the terms and conditions of employment.
ISSUES
1. 	Did the District retaliate against Edwards by: (a) involuntarily reassigning her
from a first grade teaching assignment to a kindergarten teaching assignment; and (b) placing a
number of students in her class that exceeded by more than three the total number of students
in other kindergarten classes?
2. 	Should Edwards’s unalleged violation that the District interfered with her rights
under EERA be considered?
3. 	Is the District entitled to reasonable attorneys’ fees?
CONCLUSIONS OF LAW
Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5, subdivision (a), the charging party must show that: (1) the
employee exercised rights under EERA; (2) the employer had knowledge of the exercise of
those rights; (3) the employer took adverse action against the employee; and (4) the employer
took the action because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210, pp. 5-6 (Novato).)
19

The District does not dispute that Edwards engaged in protected activities, including
filing unfair practice charges, serving as a union officer and site representative, and
representing employees in meetings with District administrators. The District also does not
dispute that it had knowledge of Edwards’s protected activities. However, the District asserts
Edwards cannot establish a prima facie case for retaliation because it took no adverse action
against her and there is no nexus between her protected activity and any alleged adverse action.
A. 	Adverse Action
In determining whether evidence of adverse action is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689, p. 12.) In a later decision, the Board
further explained that:
The test which must be satisfied is not whether the employee
found the employer’s action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee’s
employment.
(Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12; emphasis added;
footnote omitted.)
1. 	Reassignment to Kindergarten
Edwards’s reassignment to kindergarten did not alter her pay and benefits. However,
the effect on pay and benefits is not the only determiner of whether a transfer constitutes an
adverse action. (Compton Unified School District (2003) PERB Decision No. 1518, proposed
decision p. 30.) Other factors the Board looks to in transfer situations are increased
preparation time to teach a new curriculum, (Chico Unified School District (2015) PERB
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Decision No. 2463, proposed decision p. 16.), and more difficult students in the new
assignment. (Fresno County Office of Education (2004) PERB Decision No. 1674, p. 13.)
Here, Edwards’s reassignment to kindergarten required her to spend time learning and
preparing for a new curriculum since she had never taught at that grade level before.
Additionally, kindergarten teachers face challenges that first grade teachers do not because
kindergarten students require constant assistance with tasks first grade students are able to
accomplish on their own, such as writing their names or tying their shoes. Kindergarten
students also require more attention because they have an increased tendency to soil
themselves or cry. Edwards also had more kindergarten students than she had first grade
students. Finally, teaching kindergarten subjected Edwards to more parental scrutiny because
parents of kindergarten students were more active in monitoring their children’s progress. In
totality, these factors show that a reasonable employee would believe kindergarten was a less
desirable assignment than first grade. Accordingly, Edwards established the reassignment
from first grade to kindergarten was an adverse action.
2. 	Class Size
The complaint frames the alleged adverse action regarding class size as the District’s
discriminatory enforcement of the class size provisions in the CBA. Paragraph 7 of the
complaint states:
On or about August 13, 2014, Respondent took adverse action
against Charging Party by placing a total number of students in
her class that exceeded by more than three the total number of
students in other kindergarten classes. The memorandum of
understanding between [LETA] and the District, section 5.1.2
states “Elementary class sizes at the same grade level shall differ
by no more than three (3) students.”
21

In Woodland Joint Unified School District, the Board held that discriminatory
enforcement of a work rule for the purpose of harassing or intimidating an employee in
retaliation for having engaged in protected activity constitutes an adverse action. (Woodland
Joint Unified School District (1990) PERB Decision No. 808, pp. 3-4, citing Hyatt Regency
Memphis (1989) 296 NLRB No. 36 and 296 NLRB No. 37; BMD Sportswear (1987)
283 NLRB No. 4; NLRB v. S.E. Nichols (2d Cir. 1988) 862 F.2d 952.) There, a school district
required a teacher to submit a doctor’s note for four consecutive days of absence. (Woodland
Joint Unified School District, supra, PERB Decision No. 808, p. 2.) Although the doctor’s
note requirement was in the CBA, the Board deemed the application of the requirement to the
teacher to be an adverse action, since no other teachers were required to comply with the
requirement. (Id. at pp. 2-4.)
Here, the evidence does not show any discriminatory enforcement of the class size
provisions against Edwards because kindergarten class sizes at LVS did not differ by more
than three students during the 2014-2015 school year. While kindergarten class sizes
fluctuated during the school year, the largest and smallest classes were always within one or
two students of each other.
Edwards argues there was an adverse action because her kindergarten class had more
than three students compared to the lone TK classroom at LVS. Her argument rests on the
assumption that TK and kindergarten are the same grade level for purposes of determining
class sizes under the 2014-2015 CBA. However, the TK-K MOU unequivocally states that for
purposes of the 2014-2015 CBA, TK and kindergarten are to be treated as separate grade
levels. Edwards asserts the TK-K MOU violates Education Code section 48000, which states
in pertinent part:
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For purposes of this section, “transitional kindergarten” means
the first year of a two-year kindergarten program that uses
kindergarten curriculum that is age and developmentally
appropriate.
(Cal. Educ. Code § 48000, subd. (d).)10
It is unclear how the TK-K MOU violates that Code section. Although the Education
Code states that TK is part of a two-year kindergarten program, it is silent as to how TK must
be treated when determining class sizes pursuant to a collective bargaining agreement between
a school district and an exclusive representative. Edwards also argues the TK-K MOU violates
the District’s Board Policies that treat TK and kindergarten as the same grade level for
purposes of calculating student enrollment. Again, while those policies place TK with
kindergarten for purposes of calculating enrollment, they are silent as to how the District must
treat TK for purposes of determining appropriate class sizes under the CBA.
Edwards has not established that the Education Code or the District’s Board Policies
require the District to treat TK and kindergarten as the same grade level for all purposes. In
the absence of any conflicting outside authority, the TK-K MOU is a valid addendum to the
2014-2015 CBA and clearly states TK and kindergarten are not the same grade level. Since
her class was appropriately balanced with the other kindergarten classes, Edwards did not
establish the District took any adverse action against her with regard to class size.
Accordingly, she did not establish a prima facie case for retaliation based on her class size, and
that allegation is dismissed.
10 While PERB has no jurisdiction to enforce provisions of the Education Code, it has
jurisdiction to interpret the Education Code as necessary to carry out its duty to administer
EERA. (Desert Community College District (2007) PERB Decision No. 1921, p. 12, fn. 13,
citing Whisman Elementary School District (1991) PERB Decision No. 868.)
23

B. 	Nexus
Edwards’s reassignment to kindergarten occurred in close temporal proximity to her
protected activity. While the timing of the employer’s adverse action in close temporal
proximity to the employee’s protected conduct is an important factor (North Sacramento
School District (1982) PERB Decision No. 264, p. 23.), it does not, without more, demonstrate
the necessary connection or “nexus” between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227, p. 13.) Facts
establishing one or more of the following additional factors must also be present: (1) the
employer’s disparate treatment of the employee (State of California (Department of
Transportation) (1984) PERB Decision No. 459-S, p. 6); (2) the employer’s departure from
established procedures and standards when dealing with the employee (Santa Clara Unified
School District (1979) PERB Decision No. 104, p. 20); (3) the employer’s inconsistent or
contradictory justifications for its actions (State of California (Department of Parks and
Recreation) (1983) PERB Decision No. 328-S, p. 13); (4) the employer’s cursory investigation
of the employee’s misconduct (City of Torrance (2008) PERB Decision No. 1971-M, p. 17,
citing Coast Community College District (2003) PERB Decision No. 1560); (5) the employer’s
failure to offer the employee justification at the time it took action (Oakland Unified School
District (2003) PERB Decision No. 1529, p. 10) or the offering of exaggerated, vague, or
ambiguous reasons (McFarland Unified School District (1990) PERB Decision No. 786,
p. 12); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M, pp. 15-16); or (7) any other facts that might demonstrate
the employer’s unlawful motive (Novato, supra, PERB Decision No. 210, pp. 6-7).
24

Edwards asserts there is circumstantial evidence of nexus because the District failed to
follow its own procedures when it reassigned her. She argues the CBA required the District to
post the first grade position Rosales reverted back to as an opening, thereby subjecting Rosales
to possible reassignment to a different grade level or even a transfer out of LVS. While
Edwards points to the reassignment language in the 2011-2014 CBA in support of her
argument, those contract provisions do not specifically address reversions when a voluntary
reassignment is no longer needed. Meyer testified that it is the District’s past practice to allow
a teacher who was voluntarily reassigned to a new position to revert back to her old position if
the new position is no longer needed. Edwards did not present any evidence to rebut Meyer’s
testimony regarding the past practice, and it seems unlikely her interpretation of the CBA is
correct since it would essentially punish teachers for volunteering for reassignments.
Therefore, Meyers’ testimony is credited over Edwards regarding the existence of a past
practice, and it is found that the District was not required to post the first grade position
Rosales reverted back to when her K-1 combination class was collapsed.
The record reflects the District followed the procedures in the 2011-2014 CBA when it
reassigned Edwards to kindergarten. It posted the open kindergarten position to LVS staff for
volunteers. When no one volunteered, Edwards was involuntarily reassigned into the position
because she was the least senior employee at LVS qualified to fill the position. There is
nothing to show a departure from established procedures or any other circumstantial evidence
to suggest the District reassigned Edwards to kindergarten because of her protected activity.
Accordingly, she did not establish a prima facie case for retaliation based on her reassignment,
and that allegation is dismissed.
25

________________________
Unalleged Violation
In her closing brief, Edwards argues the District interfered with her right to represent
bargaining unit employee Kimberly Larson when it reassigned Edwards into the kindergarten
position Larson was occupying and then terminated Larson.11 This claim is not in the
complaint and must meet the requirements for an unalleged violation to constitute a source of
liability for the District. The Board has the authority to review unalleged violations when the
following criteria are met: (1) adequate notice and opportunity to defend has been provided to
respondent; (2) the acts are intimately related to the subject matter of the complaint and are
part of the same course of conduct; (3) the unalleged violation has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-examined on the issue.
(County of Riverside (2010) PERB Decision No. 2097-M, p. 7, citing Fresno County Superior
Court (2008) PERB Decision No. 1942-C.) The unalleged violation must also have occurred
within the applicable statute of limitations period. (Ibid.)
Edwards did not provide adequate notice to the District that it sought to litigate any
alleged interference with her representation of Larson. She did not mention this claim in her
opening statement or otherwise put the District on notice of her intent to litigate the issue.
Furthermore, the claim is not intimately related to the subject matter of the complaint. While
the complaint alleges discrimination based on Edwards’s reassignment, there are no facts
regarding her representation of Larson or the impact the reassignment had on her
representation. Neither Edwards nor Larson’s testimony at the hearing suggests the existence
of any ongoing representation at the time of the reassignment. Since there was no testimony
regarding the representation, the District did not have the opportunity to examine witnesses on
11 Larson was a long-term substitute in the kindergarten position that Edwards was
reassigned to in the 2013-2014 school year.
26

the subject. Finally, the allegation of interference is untimely since it did not occur within the
applicable statute of limitations period. Edwards first raised the allegation in her closing brief,
and the alleged interference occurred almost a year prior during the 2013-2014 school year.
Accordingly, the District’s alleged interference with Edwards’s representation of Larson will
not be considered as an unalleged violation.
Attorneys’ Fees
PERB will award attorneys’ fees only if the charge is without arguable merit and
pursued in bad faith. (City of Alhambra (2009) PERB Decision No. 2036-M, p. 19.) Bad faith
includes conduct that is dilatory, vexatious, or otherwise an abuse of process. (Ibid.) The
District requests that Edwards be ordered to pay its reasonable attorneys’ fees and costs
incurred in this matter because she engaged in dilatory tactics. Specifically, that her slow pace
in putting on evidence extended the length of the hearing for an additional two days. While
Edwards’s pace was deliberate, that had more to do with her inexperience as an advocate than
bad faith. Nothing suggests her conduct was intended to delay or otherwise frustrate the
proceedings. To the contrary, Edwards arrived at each day of hearing prepared to prosecute
her case. Accordingly, the District’s request for reasonable attorneys’ fees and costs is denied.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-5908-E,
Lori E. Edwards v. Lake Elsinore Unified School District, are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision. The
Board’s address is:
27

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered “filed” when received by facsimile transmission before the close of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 32135(d), provided the
filing party also places the original, together with the required number of copies and proof of service,
in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090, 32091 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served on a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140, and
32135, subd. (c).)
28